Meigs County commissioners sued by a former employee alleging COVID discrimination

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ATHENS, Ohio (WOUB) — A former Meigs County employee has filed a discrimination lawsuit against county commissioners claiming they fired her because they thought she had COVID.

Meigs County Courthouse
Meigs County Courthouse [WOUB File Photo]
Betsy Entsminger was a grant administrator before falling ill during the beginning of the COVID-19 pandemic in early 2020. According to her lawsuit, she was never able to get tested for the virus because testing was not widely available at the time and restricted to elderly and high-risk people. 

She was advised by healthcare workers to go ahead and follow the usual procedures of quarantining.

Entsminger said she returned to work after her quarantine but was told to go back home because she still wasn’t feeling well. She talked to a health care provider, who also told her to stay home, according to the lawsuit.

After this second quarantine, Estminger was fired.

Entsminger said she was informed by one of the county commissioners that the other two commissioners believed she had COVID-19 and this is why she was fired. Entsminger said she never did learn whether she had COVID.

Two weeks ago, Entsminger filed a lawsuit in federal court against Meigs County commissioners alleging they violated state and federal anti-discrimination laws by firing her.

Entsminger argues in her lawsuit that getting fired because her employers believed she had COVID was an act of discrimination. 

This case raises a tough legal question on whether COVID-19 qualifies as a disability, and there are no clear answers. It helps to understand the Americans with Disabilities Act (ADA) and what it protects. 

The ADA is a civil rights law passed in 1990 preventing discrimination in the workforce, including medical disabilities. In 2008, Congress clarified and expanded on the meaning of a disability. There are three different types of disability: actual disability, regarded as disability, and record of disability. 

According to employment attorney Edward Harold, whether COVID qualifies as a disability depends on the severity. “If you take off for work but you are still able to function, you don’t arguably have a disability under the ADA because you were not substantially limited to anything,” said Harold, who works in the New Orleans office of the Fisher Phillips law firm.

He has found a pattern in previous cases suggesting that the severity of symptoms is going to be the key issue.

“What these cases are saying is that if somebody has a severe case of COVID where they cannot breathe and they can’t get out of bed, they have severe symptoms even if it is only two weeks. That two-week period of COVID could be a disability,” he said. 

But Entsminger’s case is a bit more complex than that because it’s not known whether she actually had COVID when she was fired.

“I don’t know if there is binding precedent yet to conclusively answer whether the belief that someone has COVID qualifies as believing they have a disability,” said Matthew Besser, an employment law attorney with Bolek Besser Glesius in Cleveland. 

Entsminger alleges she was fired because her employers were under the belief that she had COVID. 

She sued under what is called regarded as disability. 

“Let’s say the employer mistakenly believes the employee is bipolar and fires them for that reason, but the employee doesn’t have a bipolar disorder. That would be a claim of disability as well under what’s called regarded as disabled, and that’s what her claim is,” Besser said. 

Entsminger’s attorney, Jason Starling, explained why they chose to file under the ADA. 

“The ADA is not just about protecting actual disabilities, it’s about protecting stereotypes, hysteria, fears, myths, and things about a medical condition that might qualify as disabilities,” said Starling, who works for Willis Spangler Starling in Hilliard.

“An employer can’t discriminate against you because they believe you have a disability or you have a medical condition that may qualify as a disability even if they’re wrong,” he said. “It’s called the erroneous perception.”

Meigs County Commissioner Tim Ihle said he could not comment on the lawsuit and said the county is waiting for an attorney to be assigned to defend the county.

Some may question why it took Entsminger this long to file a lawsuit for an incident that occurred two years ago. There are multiple time-consuming steps in the process of suing an employer. 

“It’s called administrative exhaustion, and before a plaintiff can bring a lawsuit in court, they have to get a letter from the agency called a right to sue letter,” Besser said, referring to the Equal Employment Opportunity Commission (EEOC). 

In 2021, Entsminger filed a discrimination complaint with EEOC.

“In some cases, an employee will let the EEOC do a full investigation and interview people and come up with a conclusion,” Besser said. “The conclusion though is not binding and oftentimes a litigation will follow.”

In March 2022, the EEOC issued a “Notice of Right to Sue” letter to Entsminger. 

The EEOC on its website addresses many questions regarding COVID-19 in the workforce. There are answers for employees and employers who wonder about how to provide a safe workplace for everyone without causing harm and discrimination.

According to the website, “If an employer wishes to ask only a particular employee to answer such questions, or to have a temperature reading or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease.”